Criminal cases in Kenya are subject to various laws, and it is thus understandable that many people find these matters to be confusing. Sometimes, this confusion stems from what rights a person has after being arrested for a petty crime, and at other times, it arises from the lack of knowledge as to the role that different persons (such as prosecutors and lawyers) serve in these criminal matters.
Our guide breaks down the top questions that we come across in criminal cases in Kenya and their corresponding answers.
What Are The Most Frequently Asked Questions On Criminal Cases In Kenya?
If you are new to criminal cases in Kenya, you, like many other people, are likely dealing with some level of confusion about what the law states and how this affects people in these matters. Below are the most common questions in this regard, whose answers can shed more light on the workings of criminal law in Kenya.
What is the difference between a suspect and an accused person?
A suspect is someone whom the police believe has committed a crime but has not been arrested or charged, and an accused person is someone who has been formally charged with committing a crime and hence must attend court.
What are the rights of an accused person in Kenya?
In Kenya, an accused person has several rights that are guaranteed under our Constitution. These rights include
- The right to be informed of the reason(s) for the arrest,
- The right to remain silent and the right to legal counsel.
Other rights include:
- The right to presumption of innocence until proven guilty,
- The right to information,
- The right to humane treatment,
- The right to be brought to court within 24 hours,
- The right to communicate with legal counsel and family,
- The right to be held separately from people who are serving a sentence,
- The right to bail or bond, and
- The right to a fair trial, amongst others.
It is worth noting that the right to a fair trial includes the right to an expeditious trial, the right for the accused person to present their evidence appropriately, and to cross-examine the prosecution witnesses.
There is a right to bail and or bond, but this right is not absolute, and it is conditional based on several factors, such as the probability or otherwise of the accused person appearing in courts when required to or the likelihood of the accused person interfering with the witnesses when out of custody on bail. The courts also consider whether the accused has a fixed abode or address where he can be easily located if need be. These are some of the factors that are looked into by the courts before bail is given.
How should police officers conduct themselves during an arrest?
Many Kenyans are unsure of what should transpire in the event of an arrest. However, the law is very clear on how police officers should conduct themselves during the arrest of a suspect. First of all, the police officers must identify themselves by giving their names and identification numbers to the suspect.
Secondly, the police must also inform the suspect of the reason for the arrest and also inform him or her of his or her rights as the suspect. This will be done during the arrest, and then the suspect will be booked into custody. Following this, the booking should be entered in the occurrence book at the respective police station, and a charge sheet should then be prepared detailing how and why the accused or suspect has been arrested.
What is the role of the prosecutor in criminal cases in Kenya?
The role of the prosecutor in criminal cases in Kenya is clearly outlined in the Constitution. The prosecutor is a government lawyer whose main role is to ensure that the rule of law is upheld in all cases where a crime is supposed to have been committed. He has the duty, therefore, to prove that the accused person committed the crime that he or she is accused of by bringing forth the evidence to prove the commission of the crime by the accused person.
During the hearing of criminal cases in Kenya, the prosecutor leads his witnesses to assist the court in getting the available evidence, and also cross-examines the defence witnesses regarding the crime. The hearing process is meant to assist the court in finding out whether the accused person did in fact commit the crime he is accused of, and the proof is supposed to reach a very high standard of beyond a reasonable doubt, or he did not.
Further, the Prosecutor has the mandate to discontinue and or withdraw a criminal case in court with good reasons. This can be done if he determines that the evidence in his possession is not sufficient to convict the accused person or if he considers the accused person’s defence to be plausible or convincing enough for the accused person to secure an acquittal.
It is not the duty of the Prosecutor to secure a conviction in all criminal cases in Kenya. His duty is to ensure that where a crime has been committed, the accused person is convicted, but should the evidence against the accused not be adequate, the prosecutor should not relinquish his duty to inform the court likewise and discontinue the matter.
At the same time, the Prosecutor, in all cases that can qualify for alternative dispute resolution, can recommend the same to the court. Where the matter is referred to the alternative resolution, he is also required to take part in the process of settling the matter.
What is the role of the defence attorney in criminal cases?
A defence attorney or advocate is mandated to help protect the rights of the accused person and to help them get the best outcome in their matter in the form of either being acquitted by the courts or being sentenced to a lesser criminal offence. Thus, the defence attorney ensures that the rights of the accused person are protected and are not infringed on.
The defence attorney assists his client in the court hearing process by challenging the evidence brought forth by the prosecution so that the same loses credence and is of no use to the court in the prosecution’s case.
The attorney also has to gather evidence in support of the accused’s case and get witnesses to come forth and present it in the best possible way.
The court weighs the prosecution’s evidence against the accused’s evidence to determine the innocence or otherwise of the accused person.
What are the different types of pleas in Kenya?
In the Kenyan laws, there are two types of pleas, which are that the accused person pleads to either being ‘guilty’ or ‘not guilty’. The accused cannot remain neutral in his case.
What is the process of arraigning an accused person in court?
There is a legal process as to how an accused person should be arraigned in court, well set out in our Constitution, the Penal Code, and the Criminal Procedure Code.
The process usually starts with the police arresting the accused person. A charge sheet is then prepared detailing the charges brought against the accused person and also stating the specific Sections of the Penal Code the accused person has contravened.
The accused person should then be presented before a court of law within 24 hours from the time he was arrested. Once in court, the charges against the accused person are read out to him in open court, and the charges should be read in a language which the accused person fully understands, and where a language translator is required, one should be made available by the court.
Consequently, the accused person responds to the charges, and his response can be either a plea/answer to the effect that he is guilty or not guilty, and the same is noted by the court. If the accused person enters a not guilty plea, the case then proceeds to trial.
What are the rights of an accused person during the investigation?
An accused person, during an investigation process, has several rights as entrenched in the Constitution. They include mainly:
- The right to remain silent, hence an accused person can remain silent and not say anything to the investigator,
- The right to have an attorney present during the questioning, and
- The right to be informed of the charges that are being preferred against him, amongst others.
The accused person should not be forced or coerced to record a statement that is self-incriminating or admit to false accusations against him.
Get Advice on Criminal Cases in Kenya.
While this guide adequately covers the basics of criminal cases in Kenya, we understand that all matters are nuanced and a one-size-fits-all approach is not effective. That is why we offer personalized consultations to our clients. If you would like to receive expert legal advice that has been tailored to you, please use the form below to book a consultation with us, and we will get back to you shortly.